149. Social security is defined as ‘the set of policies and programmes designed to reduce and prevent poverty and vulnerability across the life cycle’.184 The right to social security encompasses nine main areas: ‘child and family benefits, maternity protection, unemployment support, employment injury benefits, sickness benefits, health protection, old-age benefits, disability benefits and survivors’
benefits.’185 Social protection systems ‘address all these policy areas by a mix of contributory schemes (social insurance) and non-contributory tax-financed schemes including social assistance.’186
150. Submissions to the Open-ended Working Group on Ageing have shown that the extent to which older persons enjoy the right to social protection varies considerably, but that overall there are
183 F Seatzu, ‘Constructing a Right to Palliative Care: The Inter-American Convention on the Rights of Older Persons’, Ius et Scientia, 2015, Vol 1, No 1, 25, 38.
184 International Labour Office, World Social Protection Report 2017–19: Universal social protection to achieve the Sustainable Development Goals [World Social Protection Report 2017–19], Geneva, 2017, 2.
185 Ibid.
186 Ibid.
significant gaps in the enjoyment of the right.187 The major form of social protection for older persons is provided in the form of income security but also access to health care. Approximately a third of persons of working age are, however, still not covered by an old-age pension scheme. Nonetheless, significant progress has been made in extending pension coverage and as of 2017, 67.6 per cent of the working age population were covered under existing laws regulating contributory or non-contributory pension schemes,188 and 68 per cent of people above retirement age received a pension.189 However,
‘for many of those who do receive a pension, pension levels are not adequate.’190
151. There is also a persistent gender gap in access to income security in older age,191 that reflects the patterns of women’s formal labour force participation, often in the informal economy and in the rural economy, and discrimination in wage rates thereby affecting the level of pensions available to women through contributory pensions schemes.192 Non-contributory schemes are thus important for ensuring women’s access to basic income support, but ‘they are often low, insufficient to fully meet their needs . . . and do not fully compensate for the lack of contributory coverage.’193 Gender-responsive social insurance pension schemes that include redistributive elements, such as minimum pension guarantees and care credits, can play an important role in ensuring adequate coverage for both women and men.
152. Information provided to the Open-ended Working Group on Ageing also noted that older refugees, asylum-seekers and internally displaced persons ‘are particularly vulnerable to poverty and social exclusion’ and ‘[d]espite being particularly vulnerable, older refugees are often not included in national social protection schemes, due to legal and administrative barriers.’194
153. The existing international legal framework recognizes that ensuring the rights to social protection and to an adequate standard of living includes a nationally-defined social protection floor to guarantee at least a basic level of income security and access to health care that permits a person to live a decent life, and extends to higher levels of income replacement and the full participation in the community and guarantees of personal dignity.195
Existing human rights treaties and the practice of the human rights treaty bodies
154. The right of older persons to social security and to an adequate standard of living are set out in existing international human rights law.196 Article 25 of the Universal Declaration of Human Rights guarantees the right to an adequate standard of living and the right to security in older age, while Articles 9 and 11 of the ICESCR guarantee the rights to social security and an adequate standard of living
187 Substantive Inputs on the Focus Area ‘Social protection and social security (including social protection floors)’[Substantive inputs – Social protection], Working document submitted by the Office of the High Commissioner for Human Rights (OHCHR), A/AC.278/2019/CRP.3 (2019), https://social.un.org/ageing-working-group/documents/tenth/A_AC.278_2019_CRP.3.pdf; Substantive Inputs in the form of Normative Content for the Development of a Possible International Standard on the Focus Areas ‘Education, Training, Lifelong learning and Capacity Building’ and ‘Social Protection and Social Security (including social protection floors) on the Focus Area ‘Social protection and social security (including social protection floors)’, Working document submitted by the Department of Economic and Social Affairs (DESA) in collaboration with the Office of the High Commissioner for Human Rights (OHCHR), A/AC.278/2020/CRP.2 (2020).
188 World Social Protection Report 2017–19, above n 184, 78. The coverage of women is slightly lower.
189 Id at 79.
190 Social Protection Department International Labour Office, Social protection for older persons: Key policy trends and statistics, Social Protection Policy Paper No 11 (2014), ix.
191 Substantive inputs – Social protection, paras 23-27.
192 World Social Protection Report 2017–19, above n 184, 86-88. See also Committee on the Elimination of Discrimination against Women, Ciobanu v Moldova, Communication No 104/2016, views of 4 November 2019.
193 Id at 87.
194 Substantive inputs – Social protection, para 28.
195 Substantive inputs – Social protection, para 20.
196 Substantive inputs – Social protection, paras 3-8; 2012 Analytical Study, pp 15-17.
respectively in general terms. Other principal United Nations human rights treaties also guarantee some aspects of these rights,197 as do a number of regional human rights instruments.198 Some of these guarantees refer explicitly to older persons, while others do so by necessary implication, for example those that guarantee social security. The right to an adequate standard of living also includes the right to adequate housing199 and the right to adequate food.200 The right to an adequate standard of living is generally guaranteed in the ICESCR and other treaties, although these guarantees generally do not refer explicitly to older persons.201
155. The tripartite constituents of the International Labour Organization have also developed a body of social security Conventions and Recommendations with a view to giving substance to the human right to social security by reference to the core principles of administration and financing and minimum benchmarks of protection which should be ensured, including in the case of old age. The Social Security (Minimum Standards) Convention, 1952 (No 102),202 the Old-Age, Invalidity and Survivors’ Benefits Convention, 1967 (No 128),203 and its accompanying Recommendation No 131, and the Social Protection Floors Recommendation, 2012 (No 202), are the most important ILO instruments in this context. They have been described as providing ‘an international reference framework setting out the range and levels of social security benefits that are necessary and adequate for ensuring income maintenance and income security, as well as access to health care in old age.’204 Although their ratification rate has so far not reached that of human rights instruments, ILO social security Conventions have shaped the development of social security systems around the world.205 Alongside ILO Conventions which are open to ratification by member States and have the potential of creating legal obligations, social security Recommendations, while not binding, are also important sources of policy guidance to Member States of the ILO and subject to mandatory submission to national Parliaments for consideration.206 As soft law instruments, ILO Recommendations have allowed the emergence and recognition in international law of new notions such as that of social protection floors.
197 Convention on the Elimination of All Forms of Discrimination against Women, Articles 11(1)(e), 11(2)(b) and 14(2)(c); Convention on the Rights of the Child, Articles 26 and 27(1); International Convention on the Elimination of All Forms of Racial Discrimination, Article 5(e)(iv); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Articles 27 and 54; Convention on the Rights of Persons with Disabilities, Article 28.
198 For example, the Revised European Social Charter; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights 1988, Article 9; the Inter-American Convention on Protecting the Human Rights of Older Persons, Article 17.
199 2012 Analytical Study, pp 20-21.
200 2012 Analytical Study, pp 19-20.
201 However, Article 23 of the Revised European Social Charter explicitly guarantees ‘the right of elderly persons to social protection’; Article 17 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights provides that everyone ‘has the right to social protection in old age’; and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, Article 7 (Social protection) requires States parties to ensure that the right of older persons to income security and other forms of social protection is ensured.
202 Entered into force 27 April 1955. As of 28 December 2020 the Convention had received 59 ratifications. As of December 2020 187 States which were members of the International Labour Organization.
203 Entered into force 1 November 1969. As of 28 December 2020 the Convention had received 17 ratifications.
204 World Social Protection Report 2017–19, above n 184, 77; Substantive inputs – Social protection, para 4 n 4.
205 ILO, Universal Social Protection for Human Dignity, Social Justice and Sustainable Development: General Survey Concerning the Social Protection Floors Recommendation, 2012 (No. 202) (2019). ILC.108/III/B.
https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_673680.pdf.
206 The obligation of Member States is to submit the recommendations to the competent national authorities for consideration: Constitution of the International Labour Organization, art 19(6). As of 21 January 2021, 69 of the 187 Member States of the ILO had not yet submitted Recommendation 202 to the relevant national authorities:
156. The ILO Social Protection Floors Recommendation, 2012 (No 202) has been described as completing the framework established by the earlier instruments ‘by calling for the guarantee of basic income security to all persons in old age, prioritizing those in need and those not covered by existing arrangements.’207 The arrangements recommended are also seen as a key means of contributing to the realization of a number of the Sustainable Development Goals, notably SDG 1 aimed at ending poverty in all its forms everywhere, including by implementing nationally appropriate social protection systems and measures for all including floors, and to achieve by 2030 substantial coverage of the poor and the vulnerable (target 1.3). The instrument ‘provides guidance’ to Members as to how to create comprehensive social protection systems, including social protection floors as a key element thereof, and to design policies aimed at progressively ensuring higher levels of social security to as many people as possible as soon as possible. ‘Social protection floors’ are defined as ‘nationally defined sets of basic social security guarantees which secure protection aimed at preventing or alleviating poverty, vulnerability and social exclusion’208 and should include ‘basic income security, at least at a nationally defined minimum level, for older persons.’209
157. The CESCR adopted a general comment on the right to social security in 2008.210 This largely adopted the framework set out in ILO conventions and recommendations on the topic and included specific reference to old age as one of the branches of social security.211 It notes the gender bias in many arrangements relating to employment, retirement ages and contributory pension schemes, 212 and sets out in detail the obligations of States parties.
Limitations, deficiencies and gaps
158. There is an extensive system of international legal instruments in relation to social protection which applies in principle to older persons either implicitly (by subjecting persons in active age to old age protection mechanisms) or explicitly (by reference to persons in situation of old age). However, there are a number of limitations in the binding normative framework in the principal treaty provisions.
159. One of the major issues in discussions about ensuring adequate social protection for ageing populations has been concern about the financial sustainability of such systems as the ratio of older persons to younger person increases. While this is an issue, it is clear that sometimes this discussion is influenced by ageist assumptions and stereotypes, for example the assumption that the ‘working population cohort’ is all engaged in work and that the older population is not, in calculating dependency ratios.213 These factors need to be recognized in policy discussions and defining the obligations of States to ensure social protection for older persons.
160. In relation to children, persons with disabilities, and migrant workers, the respective thematic United Nations conventions all include the right to social security, but tailored to the specific situation of the groups protected by the specific convention. While any new normative instrument on the rights of older persons would be expected to include a provision modelled on existing provisions, the drafting of a new provision would provide the opportunity both to update the general guarantees contained in the ICESCR (which make no explicit reference to older persons) and to address issues that have emerged as important in the international discussion in the half a century since the ICESCR was adopted, including the implications of increased longevity and economic activity post traditional retirement age.
207 World Social Protection Report 2017–19, above n 184, 77.
208 Paragraph I(1) and (2).
209 Paragraph II(2)(d).
210 CESCR, General comment No 19 (the right to social security (art 9)), E/C.12/GC/19 (2008).
211 E/C.12/GC/19, para 15 (2008).
212 E/C.12/GC/19, para 32 (2008).
213 United Nations Department of Social and Economic Affairs Population Division, World Population Ageing 2019: Highlights (United Nations, 2019), ST/ESA/SER.A/430, 13.
Conclusion on the right to social protection
161. Although there are extensive international human rights and ILO standards on the right to social protection and social security, there is a case for bringing some of these provisions up to date in view of the major challenges and transformations impacting the world of work and old age-related policies and legal frameworks with a view to developing a new potentially binding international standard specifically addressing these concerns and setting the reference framework in this respect.